Six Articles on Electronic - Craig Ball

Craig Ball © 2007
Twenty Tips for Counsel Seeking Discovery
1. Get your preservation letter out early and be both specific and general. Assume that the
recipients don’t know their own systems and don’t understand computer forensics. Use
the letter to educate them so they can’t use ignorance as an excuse.
2. Do your homework: use the Net and ask around to learn about the nature and extent of
your opponent’s systems and practices. You’re probably not the first person to pursue e-
discovery against the defendant. Others may know where the bodies are buried.
3. Get your e-discovery out swiftly. Data is going to disappear. You’re in a poor position to
complain about it if you didn’t seek the missing evidence while it was still around.
4. Force broad retention, but pursue narrow discovery.
5. What they must keep and what they must give you are different obligations. Keeping the
first broad protects your client’s interests and exposes their negligence and perfidy.
Keeping requests for production narrow and carefully crafted makes it hard for your
opponent to buy delays through objection. Laser-like requests mean that your opponents
must search with a spoon instead of a backhoe. Tactically, ten single, surgical requests
spread over 20 days are more effective than 20 requests in one.
6. Be aware that opposing counsel may not understand the systems as well as you do, and
won’t want anyone—especially his client--to know. Help him “get it,” so he can pose the
right questions to his client.
7. Question the IT people and focus on the grunts. They’ve spent less time in the
woodshed than the managers, and they know the real retention practices.
8. Get their document retention policies, network topology and inventory of computing
resources (including laptops, home systems, PDAs and removable media).
9. Invoke the court’s injunctive power early to force preservation. The agreement reached
to avoid a court order may be better than the relief you’ll get from the judge.
10. If you can’t get make any headway, seek appointment of a neutral expert or special
master.
11. Ask all opponent employee witnesses what they were told to do in the way of e-document
retention, then find out what they actually did.
12. Digital data is easily forged. Know how and when to check for authenticity of data
produced.
13. Be sure to get metadata whenever it may be relevant.
14. Don’t accept image data (TIFF or PDF) when you need native data.
15. Have the principal cases on e-discovery and cost shifting at hand. Tailor your requests to
the language of the cases.
16. Set objections for hearing immediately. Require assertions of burden and cost to be
supported by evidence.
17. Analyze what you get promptly after you get it, and pin down that it’s being tendered as
“everything” that’s responsive. Follow up with additional requests based upon your
analysis.
18. Don’t let yourself be railroaded into cost sharing, but if it happens, be sure you’re
protected from waste and excess by the other side, and leverage your role as underwriter
to gain greater access.
19. Be prepared to propose a “claw back” production, if advantageous.
20. Don’t accept assertions about cost or complexity unless you know them to be accurate.
Independently evaluate all such claims and be prepared to propose alternatives.
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